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DOCTORS AND PHYSICIANS ARE EXPERTS who by virtue of their, who by virtue of

their training and the very nature of their profession requires to observe utmost
diligence in the performance of their work
WHEN IS THERE DOCTOR CLIENT RELATIONSHIP ;
-FACTUAL- depends on prevailing circumstances
-CONTRACTUAL- contract of medical service
1) A physician renders a professional medical service and is accepted by a
patient
2) A physician renders a professional advice communicated thru another
physician
THREE REMEDIES TO MEDICAL MALPRACTICE
1) Ex contractu???
2) Delict under art 365 of rpc (civil action would be deemed instituted if not
reserved )
3) Quasi delict
a) duty (connected with the element of breach )ew
***obligation to observe the same standard of care that a reasonable
competent doctor under the same line of practice and in good standing
(sometimes and a general neighborhood ) would use to treat a condition
under the same circumstances
Standard being referred to is national standard rule of medical
practice in the Philippine
Because the curricula in medicine education is
standardized
***obligation to have practical working knowledge of facilities equipments
and resources reasonably available to him as well as its practical
limitations
Locality Rule Refers to Local medical custom and facilities in his area
***To acquire the consent of the patient in the medical treatment that
would be done
DOCTRINE OF INFORMED CONSENT- the doctor must secure the
consent of patient to a medical treatment or investigative procedure
which however may be express or implied except when 1) in emergency
situation 2) therapeutic privilege 3) unconscious or incapable of consent
----------the immediate family shall be informed ?san galling??
(Question what if doctor says ikaw na ang bahala doc)
DR LI VS SPOUSES SOLIMAN
It is a right of self determination that the patient must be
informed
ELEMENTS OF LIABILITY UNDER NEGLIGENT THEORY OF
CONSENT
there is duty to disclose as there is no exception
PDS
- failure to disclose PDS
- the patient could not have consented if he knew
the material risk RPT

injury resulted RPT

reasonable patient test- it is of materiality that


patient could have refused and because of it injury
resulted
professional disclosure standard duty and failure
b) breach **
**
**TEST TO DETERMINE BREACH OF DUTY TO ACQUIRE CONSENT
1) reasonable patient test
2) professional information
c) damage
d) proximate causation ew
(sa res ipsa loquitur damage lang ang required all others will follow as the
harm itself is )
EXAMPLES OF NEGLIGENCE OF DOCTORS
- failure to give prompt medical attention
- error in diagnosis or treatment
o failure to get full medical history
o inexperience or incompetence
- failure to give proper advice and communication as to frequency and
quantity of medicine
- inadequate preparation for surgery
General Practitioners are those who does not have specialized practice of medicine
the standard required of them are the same as reasonable competent doctor in
general practice vice versa
Neighborhood rule- its use is discourage as it would confuse the national standard
rule.

What can prove Doctor liability under quasi delict


1) JUDICIAL NOTICE(mandatory or discretionary)- when the court deems a fact
as truth, hence no further evidence is required. Some are Laws of nature
involving science biology and physics.
(the court may take judicial notice of patients kidney location as before and
at the time of operation to be in their proper location)
2) EXPERT WITNESS- expert testimony is require to prove the standard of care
applicable to the subject doctor and the conclusion as to causation
SUPPORTED BY pharmaceutical package
- physician desk reference
- clinical practice guidelines
- learned treatise and research

3) RES IPSA LOQUITUR


a) When the accident is of a kind that that would not occur in the absence of
negligence
b) The instrumentality that caused the injury is within the exclusive control of
the defendant
c) The possibility that the plaintiff could have contributed to his injury is
eliminated
These are cases when the necessity of expert witness is dispensed as even a
person of common knowledge can conclude that the doctor has indeed been
negligent
The Harm By Themselves Are Of Such Character As To Justify An Inference Of
Negligence As The Cause Of The Harm
That Is A Question Of Law
(1)ROGELIO RAMOS VS CA
Erlinda ramos was undergo a routine genereal surgery of cholosystectomy on
her gall bladder
She was neurologically sound at its commencement
She submitted herself to the doctor for the procedure but just after she was
administerd the anesthesia she became decerebrate and totally
incapacitated
SC found that res ipsa loquitur applies in the case
(2) When after the surgery a foreign object is left in the body of the patient
(3) partial facial paralysis after mastoidectomy
(4)gangrene in case of intramuscular injection
3) CAPTAIN OF THE SHIP DOCTRINE- the doctor is like the captain of the ship, he
shall see to it that his crew shall perform the task in a proper manner. Hence
the liability of the surgeon not only those under him but also those he has a
extension of control.
- * the doctor will be solidarily liable with the nurse
Defenses of a Doctor or Physician
1) presumption of good faith the patient has the burden to overcome the
general presumption of good faith.
2) error in judgment- that among many alternative remedies or way of medical
treatment which a reasonable competent doctor would deem equally
suitable, the adoption of a measure that does not produce desired effect will
not make him liable as long as he also use due diligence in applying it
As it is, doctors are not warrantors against death or injury of
patient. There is great uncertainty in the practice of medicine that
doctors cannot guaranty the result
REYES VS SISTERS OF MERCY HOSPITAL
3) affirmation by common professional practice-

not conclusive because a doctor can depart from common professional


practice and be not negligent . as he adopts a new method but with use of
utmost diligence
4) damnun absque non injuria
If the Doctor is liable
1) liability under civil code and medmalpractice law??
2) LOST CHANCE RULE the percentage of patients survival chance minus
percentage which the medical malpractice reduced times value of life.
DUTY OF HOSPITALS
Must ensure
-adequate and safe facilities and equipments
- competence of doctors and other med prac
- adequate rules and policies of care to patients
-Oversee as to patient care
LIABILITY OF HOSPITALS
Direct and primary(1) law (2) contract (3) quasi delict
If the patient cannot pay detaining them is not proper remedy as the new civil code
provides for their remedy by suit of recovery of money but not detention
HOWEVER THE HOSPITAL MAY DETAIN A PATIENT IF HE IS (1) convicted prisoner (2)
suffering from a very contagious disease (3) madly mentally ill
MANILA DOCTORS VS CHUA
As a standard procedure will not permit patient to leave without discharge clearance
or gate pass but patient can still leave without it---- former merely serves as
exercise of the right to protest against absconding patient as a precursor to avail
other remedies

NURSES
- Those who singly or in collaboration with others initiates and performs
nursing services to individuals families and community in a health care
setting
- NURSING SERVICES INCLUDES nursing care during conception, labor, delivery,
infancy any age
EXAMPLES OF NEGLIGENCE OF NURSES m-a-l
1) Medication error negligence in administration of medicine
2) Assessment and monitoring errors- when it is the task of the nurse to monitor
vital signs of the patient he is negligent if he fails to monitor regularly which
may be the cause of late diagnosis of the illness of patient
3) Leaving foreign objects- fail to remove foreign object in a surgery before
suture

4) Failure to protect a nurse fails to make sure the safety of the patient in the
use of hospital facilities; the nurse must make sure that the facilities given to
the patient is safe.
For example nurse is negligent if he failed to make sure that the bed rails are
up when the patient is debilitated

PHARMACISTS
1) A person who for fee shall directly or indirectly pmapads prepare,
manufacture, analyze, preserve, assay, distribute, store, or sell drug medicine
or chemical pharmaceuticals devices or contrivances
2) Render pharmaceutical services to office or drugstore
3) Teaching and research in pharmacy
DILIGENCE REQUIRED
Highest practicable degree of prudence thoughtfulness and vigilance
consistent with the conduct of profession
USUAL ACTIONS AGAINST PHARMACISTS
Breach of warranty
Negligence
Order processing error right drug in wrong dosage or totally different
MERCURY VS DE LEON judge de leon purchased eye drops but instead ear drops was
given to him that caused severe irritation of his eyes
MERCURY VS BAKING Baking went to mercury to buy a prescribed medicine for
diabetes but instead sleeping pills were given to him by error of the pharmacists .
three days after he figured in a vehicular accident ------------- the pharmacist
negligence is the proximate cause of the accident
NEED FOR LICESED PHYSICIAN (more of internal medicine )
Laboratories conducting medical examinations shall be attended by a licensed
physician
LAWYERS
Conduct is governed by cpr
Canon 18 lawyer shall serve his client with competence and diligence
18.3 a lawyer shall not neglect a legal matter entrusted to him and his negligence in
connection therewith shall render him liable
--- he is not required to exercise extraordinary diligence, only reasonable degree of
care and skill
Having reference to the nature of business he undertakes
Defense of lawyer error of judgement
Where the decision became final because the lawyer did not appeal such fact alone
cannot establish negligence and recover damages there shall be proof of arbitrary
supposition of justice
ACCOUNTANT
Those who render auditing accounting verification of records services
ordinary accountant skilled

CHAPTER 5 negligence of selected bus org


Fortuitous event unforeseen ; free from human control and intervention ; of such
nature ; without default in obligation ; only and proximate cause
1 SCHOOLS AND ADMINISTRATORS May be liable under- Ordinary diligence of good
father of family specially within class hours when they are expected to be the
second parent until they are reasonably delivered to be fetched
contract ; quasi delict under 2180
CONTRACT
A contract between the school and student is created upon the acceptance of the
student for admission
; the student has the obligation to observe school rules and academic
requirements , while the school has the school to provide necessary tools and skills
in chosen field with built in obligation to maintain safe and peaceful environment for
the students
-

The contract and duty breached under the contract must be proved(there will
be concurrence of causes of actions if contract breached by tort)
Quasi delict

There must be proof of negligence of school or its employee under 2180 that is the
proximate cause of injury
CHILD LEARNING CENTER VS TAGORIO
Pre school student timothy tagorio was trapped inside a toilet in third floor of the
school. He banged the door of the cr but no one rescued. So he open the window
but in doing so fell to first floor.
----the school is itself liable under 2176 because it failed to provide a safe
environment for the children
CAPILI vs CARDANA
Principal may also be directly liable under 2176 for as in this case the principal
failed to supervise the teacher he designated to cut the branches of a tree which
because of omission of the delegate caused injury to the student to whom it fell
2 BANKS- req to act with METICOLOUS CARE AND UTNMOST FIDELITY always having
in mind the fiduciary nature of their relationship
Example : when a bank employee misappropriated the money supposedly to be
credited in the account
When a mistake in dishonoring a check with sufficient funds
When the bank acknowledges a forged check
3 FIREARMS DEALER
HIGHEST DEGREE OF CARE is required of him as he has a dangerous instrumentality
such as dangerous instrumentality or substance; hence shall make sure weapons in
his store unloaded
PACIS VS MORALES
A gun was brought out from the drawer and placed on top of the table
Alfred pacis a child got it when the gun store employee saw it he requested Alfred to
return it to him
But in the process the gun went off and a shot was fired against Alfred
The gun was a gun for repair
== the owner is negligent as he fail to observe the highest degree of diligence
required as it is required that before he accept the gun for repair 10 he must make
sure it is not loaded 2) keep it at a vault after
4 Security Agency and Guard
- Agency liability under 2180 there may be defense if selection; guard under
2176
SAFEGUARD SECURITY AGENCY VS TANGCO
Ms tangco was on the way to enter the bank in order to renew her time deposit with
ecology bank
Prior enter she was about to get her gun which she has a license to carry outside
residence in order to surrender it to the guard .
However the guard without any sufficient provocation of tangco fired a shot against
=== the guard cannot invoke self def and found guilty of frustrated homicide; 2176
can be applied even the act complained of is accompanied by intent, as it can also
be negligence imprudence or lack of skill

LAMIS VS ONG fact that act is intentional does not bar application of 2176
The schedule of Chinese cemetery 6am to 6pm
David ong arrived beyond allowable hours of visit hence the guard did not allow him
to enter
David revved his machine and as not allowed sped away
He therafter returned the guard fired two warning shots afterwhich he fired at the
car 3 times
===== the guard liable under 2176 so as to make the agency solidarily liable
5) RESORT AND SWIMMING ordinary care in maintaining and management
Death in his premises raises presumption of negligence
ONG VS METROPOLITAN WATER DISTRICT
The facilities of mwd are well maintained 2 beginners pools are sde by side with a
wading pool
The pools are with marks indicative of water level, there is a ring buoy and towing
line, there is also an assigned lifeguard with rescue kit.
Dominador ong however later drowned. His brother eusebio called for the lifeguard
Lifeguard immediately applied manual resuscitation and the injection of
camphorated later and the using of oxygen tank no avail the doctor is called. But he
is dead already
---- pool owners not insurer of life, as ordinary diligence already employed by the
mwd cannot be liable
5) THEATER Ordinary diligence with compliance of spc laws
Revised fire code there should be no over crowding otherwise negligent per
se
6) Electric and power companies ESTRAORDINARY ordinary diligence
DEL ROSARIO VS MANILA ELECTRIC CO
230 a troubled wire was reported 3-4 alberto Salvador and two others of 9 yo
came ant where alberto touched so electroculed and died=== presumption of
negligence against electric company
*sagging and dangling
*dangaerous place of installation Agusan del Norte Electric vs Balen
Balen protested in the electric wire that crosses his property but to no avail
It is very close to his property
One day in fixing the antenna of his tv got electroculed because of the
unisulated wire that tis touching his property
========

7) Building contractors
1723 the engineer and the architect shall be liable for damages if within 15 years
from the completion of the structure it should collapse by reason of the defect on
plans or ground (design defect )

Contractor shall be liable if it falls within 15 years if due to the defects of


construction or materials used or violation of terms- to include architect or engineer
is they supervised (construction defect ) May also be made liable o third persons
NAKPILS VS CA
Defect in design
NGO SIN VS LSG SONS
The negligent contractor shall be liable to his negligence not the owner ; duty of
constructor to get ins
Approval of city eng not a defense
8) Towage not a common carrier only designated to bring vessel to port
9) Stevedore- loading and unloading of cargo from a common carrier only
ordinary
10)
Common carrier extraordinary diligence with regard to all
circumstances of the case